Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-01-02
Last-Modified: 1999/06/15
The United Nations Security Council, too, notwithstanding
its disapproval of the Accused's behaviour, has manifested
this apprehension. The Council has added to its resolution
on the Accused's abduction a declaration that the Accused be
brought before an "appropriate court," "appropriate
justice," that is to say: not before an Israeli court, as
planned.
The trial of the Accused has been fair. From the strictly
legal point of view, it has not been a show trial. But
publications in the press, radio and television have
prepared the public and followed the trial throughout the
world. The Accused has wrongly been turned into the central
figure of the persecution of the Jews. The authors and real
controllers of the persecution were left in the background.
It is to be apprehended that this persistent propaganda
directed deliberately against the Accused might not have
failed to exercise its influence even on the Judges.
As to the likelihood of such an influence, I beg to refer to
the decision of the Tel Aviv District Court, given in the
middle of March 1962, in the case of a criminal appeal filed
by two editors-in-chief. I have been informed of this
decision through the press. According to this report, from a
newspaper dated 14 March 1962, the decision emphasizes that
a judge has to be endowed with considerable strength of
character not to be influenced by publications. If this
dictum applies in less important cases, the more it has to
apply where the great political events have to be judged in
which the Accused in the present case is involved. It is
respectfully submitted that these aspects be taken into
account. I likewise submit that the same be done also in
respect of the Judges of this Honourable Court of Appeal.
The other grounds of appeal submitted by the Defence refer
in the first place to irregularities of procedure.
It has already been argued that the application for hearing
the witnesses Shimoni and Tohar were wrongly rejected as
irrelevant. I reiterate, also in this context, the
application for hearing these witnesses on the subject of
the instructions given to them.
Moreover, the appeal relies upon irregularities of procedure
by which the defence of the Accused was prejudiced and
which influenced the proceedings to the detriment of the
Accused. These irregularities, too, stem from the lack of
jurisdiction of the Court.
Israel's legal system follows the principles of the Anglo-
American system according to which the accused himself has
to provide the evidence for the defence. Contrary to the
rules of Continental law, the prosecution is not bound to
provide evidence in favour of the accused as well. Under the
prevailing circumstances, the Accused was unable to fulfil
the requirement thereby demanded of him.
The relevant witnesses and documents are not available in
Israel. Moreover, they cannot be traced from Israel by the
Accused, with the means at his disposal. Only the
authorities in Germany would be able to perform this task.
The Defence had no alternative but to agree to the
examination of witnesses by the taking of evidence on
commission by a judge abroad.
However, further disadvantages resulted from the taking of
evidence in this way. According to the Austrian law of
procedure, the important witness, Hoettl, was examined by
the judge alone, in the absence of the interested parties.
In this respect, the judge himself declares, in an
accompanying letter to the District Court, that he himself
considers himself as "involved." That means that the judge
was prejudiced. The witness Becher, whose evidence too was
of importance, was served by the judge with the list of the
questions to be put to him in cross-examination, a few days
before his examination. Therefore, this witness was enabled
to prepare himself for his examination, as he had previously
on the occasion of a conversation in prison with Dr.
Kasztner, and later on when he had likewise taken certain
precautions on the occasion of a conversation with the
witness Joel Brand.
In general, it has to be emphasized that taking evidence by
commission amounts only to an insufficient alternative
measure. The court is deprived of the personal impression
made by the witness, and the witness is not examined in the
presence and with the participation of the accused who can
ask appropriate questions.
The Nazis and Nazi Collaborators (Punishment) Law, 5710-
1950, has foreseen these difficulties arising from the
proceedings by providing for the inclusion of Section 16.
This special provision enables...
President You mean Article 15, Dr. Servatius.
Dr. Servatius That must have been a mistake.
This special provision in Section 15 enables a deviation
from the ordinary rules of evidence in Court, if this
deviation is conducive to the elucidation of the truth and
the proper conduct of the trial.
The application of this section contributed to the
acceleration and the simplification of the trial. As to the
elucidation of the truth, the application of this provision
proved to be an insufficient surrogate.
A further aspect needs to be explored.
In the present case, contrary to the law prevailing on the
European continent, the record of the Accused's examination
by the Superintendent of Police, Less, as produced in Court,
was admitted in evidence.
Where statements made by the Accused during his
interrogation by the police contradicted his answers in the
witness box, the Court preferred his statements made to the
police. However, in this respect, no attention was paid to
the fact that, when he made his first statements to the
police, the Accused had at first to find his way through the
details of events which had occurred fifteen to twenty years
earlier.
The Accused was not a callous prisoner, but tried to co-
operate. This transpires from the record of the
interrogation by the police which comprises 3,500 pages, and
in particular from his voluntary statement of his having
watched executions by firing squads and gassings, to which
noone else would have been able to testify.
The Court has not found any explanation for the unveiling of
this gruesome secret by the Accused. But here it is: It was
the effort of the Accused himself to contribute to the
elucidation of the truth.
The police officer did not ask the Accused any inadmissible
leading questions. But as documents were not shown to the
Accused in chronological order, the Accused, in the
beginning, had to rely, repeatedly, on suppositions and
assumptions. Later on, after having perused the complete set
of documents, he was able to complete and rectify his former
statements. These completions and rectifications have been
wrongly construed by the Court as an effort to shirk
responsibility.
Had this been the intention of the Accused, he would have
eagerly expressed approval of the description given by the
witness, Dr. Merten, according to which the Accused assisted
him in saving 20,000 Jews from Salonika by enabling their
departure. The Accused denied having been instrumental in
such a matter. Moreover, also in respect of the so-called
"Brand Operation," nothing would have appeared to be more
favourable for the Accused, than if he had declared that he
had acted out of compassion for the Jews. The Accused
refrained from doing so.
Important findings by the District Court are not supported
by sufficient evidence.
First of all, the District Court has not properly judged the
Accused's status in relation to his superiors.
The Court did not pay sufficient attention to the fact that
the Accused was only one of the 160 Section Heads in the
Head Office for Reich Security (RSHA).
From the wealth of documents produced, not a single one is
signed other than "i.A.," im Auftrag - by order. Moreover,
the Accused's power to sign letters to the Department of
Jewish Affairs in the Foreign Ministry, without their being
countersigned by his superior, was nothing unusual. The
Department Head in the Foreign Ministry, von Thadden, also
signed letters to the RSHA without anyone countersigning
them. This is shown by numerous documents.
The District Court wrongly concludes that the Accused had
the authority to decide in important matters without
resorting to orders from his superior, in relying upon the
rules of procedure prevailing during the Weimar Republic. At
that time, a section head was more independent. However,
democratic freedom of action no longer existed under the
dictatorial regime, and in particular not in agencies of the
SS, such as the RSHA, where dictatorial orders were issued
relating to routine work. This was the typical procedure
adopted by Hitler himself, to intervene even in matters of
the least importance. Subordinates no longer had any
independent power of implementation.
The Accused's status, as compared with that of other Section
Heads, was even far less favorable and more restricted. He
did not have a Group Leader who could have supported him
before his superiors, but he was directly responsible to a
Lieutenant-General who was Head of his Department. Because
of the difference in ranks, this was bound to create a
distance which could not be bridged. Anyone with even the
slightest knowledge of matters of rank and hierarchy would
appreciate this.
In view of these circumstances, the Accused had to be
careful not to expose himself to the reproach of independent
action. Therefore, he always took care to "cover himself,"
as it is being called. The Accused's closest collaborators
confirmed, independently from each other, that this was one
of his main characteristics.
The witness Krumey stated that the Accused was careful not
to take a decision on any action on his own responsibility.
He never issued any instructions immediately, but always
requested directives from his superiors in advance.
The witness Novak testified that the Accused was constantly
summoned to appear before his superior, Lieutenant-General
Mueller.
The witness Huppenkothen testified that the Accused was
exceedingly cautious, even to the point of fear, and did not
do anything without having obtained the orders of his
superiors.
The witness Professor Six, it is true, declared that he had
the impression that the Accused, to a certain extent, held a
position at the same level as his superior; but everything
else in his testimony proves the opposite. The witness had
no knowledge of the Accused having had any special powers,
but admitted that the Accused was not called upon to attend
the meetings of superior officers, which the witness himself
always attended. Moreover, the witness testified that the
Accused never acted beyond the scope of his authority. In
view of the system prevailing in the RSHA, no one would
have dared exceed the powers conferred upon him. Finally,
the witness confirmed the Accused's characteristic habits of
obedience and subordination. It is true that the former SS
Standartenfuehrer Six now explains this as being due to the
Accused's desire to please his superiors.
This picture in no way fits the fantasies expressed by other
interested persons in portraying the Accused's status. The
witness Becher tried to create the impression that even the
Reichsfuehrer-SS Himmler was afraid of the Accused. The
witness Veesenmayer, Reich Plenipotentiary, and the SS
Generals in Hungary, Winkelmann and Geschke, alleged that
they were insignificant when compared with the Accused, who
was subordinate to them, and that they had nothing
whatsoever to do with his actions in the persecution of the
Jews.
Colonel Mildner, Commander of the Security Police in
Denmark, who was in charge of the operation against the Jews
there, in order to extricate himself, ascribes to the
Accused extensive powers such as those vested in a minister
only.
The reasons for shifting the onus of responsibility onto the
Accused are obvious. They are the very motives which caused
the prisoners at Nuremberg to portray the Accused as bearing
the main guilt for the extermination of the Jews. These
motives induced the witness von dem Bach-Zelewski to state
that for him the name Eichmann was a kind of legend.
It remains incomprehensible that the psychologist Dr.
Gilbert and Justice Musmanno, who came to Israel to testify,
gave credence to this version of the prisoners.
No wonder that the media and the press repeated this grand
interpretation. The Accused's defence was rejected
ironically as the "theory of the small cog," without the
actual circumstances being examined.
However, nobody was able to explain why this great man had
held such a low rank. An attempt was made to find a solution
to this enigma by making the Accused a kind of "grey
eminence," whose actions would not attract attention by his
holding a high rank.
It is not correct to state, as was done in the Judgment,
that the Accused could not have been promoted. It is true
that, in his position as Section Head, the Accused had no
possibility of further promotion. However, it would have
been easy to create a special status for him, as at that
time it was customary to create posts of special and general
commissioners. Such an appointment involved promotion of
rank and also an increase in salary.
An example of such an appointment was the Reich
Plenipotentiary Veesenmeyer who, according to the testimony
of the witness Hoettl, was hastily promoted to the rank of
SS General, prior to his departure for Budapest. However,
the same witness, Hoettl, also confirms that the Accused and
his family continued to live in most modest circumstances.
The Accused did not profit from the miracles of promotion
and the increases of salary in the Third Reich. This ought
to be taken into consideration. The Accused remained a
subordinate of low rank, who had begun to work in his office
as a clerk without any previous professional training.
The Accused did not have the skill of the witness Becher,
who is said today to be paying taxes on property worth
approximately one hundred million German Marks,
notwithstanding his friendly relations with the
Reichsfuehrer-SS.
The Accused also lacked the smartness of the witness
Veesenmeyer who, in the witness box, was unable to remember
having been at any time Reich Plenipotentiary in Hungary.
The Accused also did not have the skill of the witness
Professor Six, who underwent training and was able to
advance with the assistance of National Socialist grants,
but who is said to have then joined the resistance movement
at the right time. Nor did he suffer any inconvenience for
having attended a conference of Heads of Departments for
Jewish Affairs in the Foreign Ministry, held in Krummhuebel
at the end of 1944. Today he holds a respectable position.
When passing judgment on the Accused's activities, it should
be remembered that they consisted of carrying out executive
functions of the police. The police is entrusted with the
carrying out of orders only, and is guided by the law and
the instructions of the political leadership.
The District Court stated in its Judgment that it is
immaterial whether the Accused in person carried out
killings, or passed on the orders which resulted in the
killings as the consequence of rounding-up and deportation.
Thus, everyone who participated in the process of drafting
the laws must be considered as an accomplice in the
commission of the offence. Depriving the Jews of their
rights, the cancellation of their civic rights, the
confiscation of their property - all these measures were the
outcome of such legislation. At that time, these laws were
the unassailable guidelines for the actions of the police.
Dr. Hans Globke, who at that time held the post of a
Ministerialrat (Section Head) in the Reich Ministry of the
Interior ought to know, in his capacity as an expert, that
the Nuremberg Laws and Reich Citizenship Law were binding
upon the Accused and that he was unable to refuse to act
according to these laws. It is respectfully requested to
examine the former Ministerialrat Dr. Hans Globke as an
expert witness in this matter.

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